22 November 1999
When a US court wrestled with the antitrust case against software giant Microsoft, it tackled the ultimate mismatch - hi-tech and quill pen. But that's good news for courtroom experts, discovers Matt Barnard. So long as they can drop the jargon.
Sometimes the legal principles of a case aren't the most important part. This certainly seemed true when Judge Thomas Jackson announced his findings of fact in the recent Microsoft antitrust trial in the US.
Judge Jackson's finding, that the software giant has been operating a monopoly, guarantee one thing at least, that there will be many more months' of discussion and argument in court about the precise nature of Microsoft's power and influence.
And it is likely that each side will continue to rely on its expert witnesses to persuade the court. In Microsoft v the Justice Department Part I, many of the expert witnesses have had starring roles, including Franklin Fisher, professor of economics at Massachusetts Institute of Technology.
Prof Fisher strongly attacked Microsoft's behaviour on behalf of the US government, but was forced under cross-examination to admit that Microsoft's actions had not directly caused harm to consumers, though Judge Jackson indicated that Microsoft has indirectly caused harm to consumers. The Microsoft team suffered equally embarrassing incidents, such as having to withdraw a video demonstration because it was shown to be misleading.
As well as those obvious pitfalls, the Microsoft trial demonstrates many of the other difficulties in using expert witnesses in cases involving information technology. Judge Jackson has been praised for his grasp of the detail and complexity of the computer industry, but it can't have been an easy task. One of the skills of an expert witness has always been to translate opaque technical issues into something comprehensible so that the court can pronounce on the dispute.
But in the world of software engineering and IT, as Mark Solon, of London-based expert witness training firm Bond Solon, comments, it is often a case of "computer dating from hell - the mismatch between the hi-tech computer whiz and the quill pen".
Microsoft is accused of contravening 100-year-old antitrust laws, and this is a company whose industry has existed for less than a generation. In that time Microsoft has become the world's most valuable company, and more and more legal wrangles are over IT.
"But we ain't seen nothing yet" says Dr Stephen Castell, a management consultant specialising in IT and communications. "As software becomes the common driving asset of all companies, it's going to become an increasingly common area of dispute."
This trend means a burgeoning profession of IT expert witnesses, some of whom have attended courses run by Bond Solon. But computer experts are not renowned for their ability to communicate with other humans. Solon says this is often a facet they have to work on in the courses. "We've trained several computer whizzies, and I think the key point is that they often speak in a language that is beyond the wit of normal man," he says. "So we spend a lot of time trying to make what they are saying understandable."
It is something that many in the IT industry acknowledge. John Millar is a founding director of IT consultancy Charteris, and also heads up its expert witness division. Getting people to communicate effectively is an important part of his role. He says: "I have spent quite a lot of my career trying to develop technologists into being better communicators. I've seen technical witnesses in court unable to express themselves except in acronyms and gobbledygook, and I think that is really a problem."
One of the things that may give a boost to the development of IT witnesses is the millennium bug. Though this particular mite has become a symbol of our own fin-de-siacle soul-searching, the extent of the problems it will cause it is not clear. Some predict a pseudo-apocalyptic breakdown in the world's infrastructure, others a mild post-New Year's Eve hangover. What is certain is that lawyers are gearing themselves up for a fee-fest, and many in the IT profession sense an opportunity, too.
Allen Coates is a freelance IT consultant who has been doing some of Bond Solon's courses, having gained expertise in sorting out millennium bug problems. He explains: "With the best will in the world it is going to be a perishable skill, and I felt I could get a little bit more mileage out of it by being an expert witness and at the same time gain a new skill that I could apply elsewhere."
Coates has a degree in computer science and is a chartered engineer, so his qualifications as an expert are fairly traditional.
However, in a pioneer field like IT there is a mixture of people who have gained their expertise in different ways, and who could clash in court.
Coates explains: "Very often you find people who have gone on a week's course on Windows NT, for example, and they know it backwards, but outside Windows NT they sort of get lost.
"I know I can apply a principle on a topic and get overridden by someone who actually knows. It's something that is discomforting at the best of times and in a courtroom it might well be very difficult."
This is one problem that the courts will have to sort out among a myriad of others. Considering the difficulties involved, some IT experts feel the UK courts do very well in coping with cases involving the new technology. Millar says: "As a technologist, I've been positively surprised by the ability of solicitors, QCs and the judges in understanding those issues. Do they have the full knowledge that they need? No, I don't think they do. But they do have an exceptional understanding of it."
But with the best of intentions, the Microsoft case showed how difficult it is for the courts to keep up with the implications of the rapidly-developing world of new technology.
Deirdre Trapp, a competition partner at Freshfields, explains: "This technology has network effects, so the value of using a particular sort of technology increases exponentially if the user knows other people are using it, and that is very much driven around new technology and IT."
And unlike pharmaceuticals, where new developments also happen very fast, developments in IT can negate the very categories that defined the previous generation of software. Integrating a browser with an operating system, as in the Microsoft case, creates a new kind of product. And potentially, the development of browsers could make operating systems as we now know them to be redundant.
However, at the heart of the problem is the very nature of the way the technology is constructed. Taken from the perspective of a lawyer, Castell's assertions prophesise an uncomfortable future.
He says: "With software, you are dealing with a human artifact which is probably uncertain. The way software is written can be shown to be mathematically based on uncertainty."
Programmes work on the basis of logic trees. The computer processor receives information and responds with a yes or no command. This process is repeated many thousands of times for each programme, which means that it is almost impossible to predict every possible outcome.
And with the computer programmes being analogous to legal contracts, with hundreds of lines of text in technical English all defining obligations of a programme, sorting out the technicalities can be as long-winded as the legal arguments. In some cases the legal dispute has cost as much in time and costs as building a new system from scratch.
The move towards alternative dispute resolution as promoted by Lord Woolf is therefore also being driven by the nature of the disagreements in IT cases. This has even led some to suggest that there should special arbitrators to decide whether a piece of software has met its obligations which would replace the court's role in trying to decide if a provider has met their legal obligations.
"You could almost imagine a whole new industry of technological dispute resolution growing up," says Castell. However, this is unlikely to replace the lawyer in the process.
As the Microsoft case shows, when alternative resolutions break down, whether they are over IT disputes or not, companies and individuals turn to the law to seek redress.
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